Dissenting Opinion bt
Mr. Justice Dean :The plaintiff, under his uncle Frederick Simon, the latter being a lessee for years, occupied a tract of sixty-five acres of land near Thirty-sixth and Mifflin streets in Philadelphia; the land is used principally as a truck farm, but part of it, some seasons, is sowed to grass and hay cut therefrom in the fall. The defendant’s road cuts through the farm, leaving most of the arable ground on one side of the road, and the farmhouse and barn on the other. There are a private way and grade crossing with the usual plank between the rails for communication between the buildings and the cultivated part. On the 6th of October, 1894, plaintiff, with a two horse hay wagon, accompanied by three farm hands, on their way to haul hay from the further side to the barn, came to the crossing and found it obstructed by four standing freight cars. On one side of the crossing there- was a vacant space of one thousand two-hundred feet, any part of which the cars could have occupied without obstructing the crossing. Plaintiff testified that access to his fields had been frequently thus cut off; once he had been compelled to return with his team and mowing machine to his barn because he could not get over; at another time he had to cut a road through his standing grain to reach a crossing place at another point; he had complained to the assistant yard master at the time he wanted to cross with the mowing machine and the yard master had replied, “If they could get the crossing open, they would open it; if not, it would have to stay shut.”
On the morning in question, when they came to the crossing and found it closed, he notified an employee of the railroad to remove the cars, but there was no engine in sight; assisted by this one railroad man, plaintiff and his three men, by the use of fence rails for levers managed to push the cars from the crossing far enough to permit the passage of his teams. The plain*523tiff’s testimony is that the whole time of the delay after the notice was twenty-five to fifty-five minutes. There was no dispute as to any fact except the time; defendant called the one railroad employee who assisted in pushing the cars from the crossing, and he testified he did not think the time the cars were on the crossing after notice was over five minutes. He did not fix the time by a timepiece, while plaintiff’s witnesses did.
The plaintiff brought suit to recover the penalty imposed for the obstruction of crossings by the 2d section of act of 1851. That reads thus:
“ Any chartered railroad company in this commonwealth, obstructing or impeding the free use or passage of any private road or crossing place, by standing burden cars or engines or placing other obstructions on any railroad, whenever any private road or crossing may be necessary to enable the occupant or occupants of land or farms to pass over any railroad with horses, cows, hogs, sheep, carts, wagons and implements of husbandry, shall for every such offense, after any agent or other person in the employment' of any railroad company shall have received at least fifteen minutes verbal notice to remove burden cars, engines or other obstructions from any private roads or crossing place that may pass over any railroad, be liable for a penalty of thirty dollars, which shall be for the use of the per son or persons aggrieved and which shall be recovered,” etc.
The case was brought into the court below by appeal from the judgment of a magistrate. After hearing the evidence, the judge instructed the jury thus: “ The only question in this case for your, determination is, how long the obstruction of the passage by the cars existed. If it was more than fifteen minutes, if notice had been given, then your verdict must be for plaintiff. If it was not, then it must be for defendant.” The verdict and judgment were for plaintiff.
As I have stated, the only conflict in the evidence was as to the time the cars were on the crossing after notice. This dispute was left to the jury, and was all that the court could leave to them. There was no averment by defendant of an exigency in moving trains, such as accident, blocking of tracks in front, or any other excuse which would have relieved it of the penalty. There was, from the undisputed evidence, a grossly negligent or a willful obstruction of plaintiff’s crossing by four freight cars, *524for which there was ample room on any part of the twelve hundred feet of empty rail alongside. Nor was there any provision for moving them, for there was no engine in sight; in fact, so far as appears, they would have stood for hours, if plaintiff had waited for defendant to perform its plain duty under - the law. He, with his three farm hands, assisted by one railroad hand, did the work of an engine and pushed the laden cars off the crossing.
Defendant’s conduct was a flagrant violation of a plain law of the land, and it should without doubt pay the penalty.
The argument based on the importance to the public of the unimpeded management and control of their highways by large carrying corporations, as compared with the plaintiff’s few loads of hay is wholly without weight. The very object of the act was the protection of individuals in the enjoyment of their rights against the unlawful encroachments of the railroad company. The defendant had but an easement, the right of passage for its cars at this crossing; it was not a freight yard for standing cars; plaintiff’s right was subordinate to defendant’s right; he must wait until a moving train passed, but that was the extent of his subordination.
The effect of this judgment is to render to a great extent ineffective a wise and just law enacted for the protection of the weak against the strong. While I have the most profound respect for the opinion of the majority, I feel sure the judgment of the court in this case is a mistake, which in the not distant future it will correct. For that reason I do not concur.
Sterrett, C. J., concurs.